NOPD again ordered to pay attorneys’ fees after withholding public records

Public records access denied

A state appeals court has ordered the New Orleans Police Department to shell out more than $20,000 in attorneys’ fees and litigation costs after the city lost its bid to withhold supplemental police reports from an investigator who sought the documents under the Louisiana Public Records Law.

The ruling, handed down last week by a three-judge panel of the 4th Circuit Court of Appeal, marked at least the second time in recent months that the city was required to pay thousands of dollars because of its failure to turn over public records. This time, however, the city avoided having to pay civil penalties after the appellate court decided the NOPD’s failure to produce the documents had not been “arbitrary” or “capricious.”

The panel consisted of Judges Dennis Bagneris, Roland Belsome and Joy Cossich Lobrano. Belsome wrote the opinion, and Lobrano concurred “in the result.”

The latest case stemmed from a public-records request filed in September 2011 by Ethan Brown, a journalist and author who at the time was working as an investigator for the Louisiana Capital Assistance Center. The request sought “any and all information,” including supplemental police reports, relating to six criminal cases involving a local man named Aaron Harvey.

The cases, which spanned from 1998 to 2004, had been inactive or closed for years, according to court documents, and Harvey had died in 2007. The NOPD agreed to provide initial police reports in the cases for $25 apiece — the department’s standard rate — but the City Attorney’s Office decided no investigative or follow-up reports would be released to Brown.

After the department allegedly stopped responding to his emails, Brown filed suit in Orleans Parish Civil District Court, claiming the city was “in flagrant violation of the Public Records Act by failing to provide any access to any public record” in his request.

“Even in light of defendant’s position that only initial reports are ever subject to disclosure, defendant has failed to provide access to a single initial report for any of the requested files,” the petition said.

The city’s refusal to produce the investigative reports was based on a reading of the state’s public records law as well as a 1987 ruling by the 4th Circuit, State v. Burnes, that city lawyers interpreted as saying only initial police reports are public record. Supplemental police reports are “expressly excluded” by state statute and “the supremely well-established law” of the 4th Circuit, the city contended.

Attorneys with the Louisiana Capital Assistance Center countered that the Burnes case involved a police report in which criminal litigation “was clearly pending,” unlike the documents sought by Brown’s public-records request. They cited a 2009 Louisiana Supreme Court decision that they said made clear that investigative police reports become public as soon as there is no longer any pending or anticipated criminal litigation, or prosecution.

In that ruling, the high court denied CNN and The Times-Picayune access to the state Attorney General’s Office’s investigative file on Dr. Anna Pou, a physician arrested but not indicted in the deaths of several hospital patients at Memorial Medical Center after Hurricane Katrina.

The high court found the case record “insufficient to determine whether criminal litigation can be reasonably anticipated.” But the majority noted in the same ruling that the “anticipated criminal litigation” exception to the public-records law “is temporary, denying access only until pending or reasonably anticipated criminal litigation has been finally adjudicated or otherwise settled.”

Siding with Brown, the 4th Circuit reversed a ruling by Civil District Judge Tiffany Chase in March 2013. It said the investigative reports Brown sought were public record and noted that “Harvey is deceased (and) there can be no reasonably anticipated litigation.” The court held the NOPD had interpreted a single portion of the public-records law “in a vacuum.”

The city asked the Louisiana Supreme Court to review the decision, but the high court refused.

“The Louisiana Public Records Law is intended to enforce the public’s fundamental, constitutional right to public records in the most expansive and unrestricted way possible,” the 4th Circuit ruled.

In last week’s ruling, the 4th Circuit again reversed Chase, who after another hearing in October 2013 had awarded Brown $1,000 in attorneys’ fees and $47 in costs. The appeals court ordered the city instead to pay $17,900.50 in attorneys’ fees and $2,444.08 in litigation costs, saying the award was supported by a state law that guarantees “reasonable attorneys’ fees and other costs of litigation” to people who successfully sue for public records.

The city, which declined to comment Tuesday, took a similar position in another public-records request filed in late 2012 by the Innocence Project New Orleans, which sought records from a closed burglary and aggravated rape case from 1991. In that case, which also became the subject of lengthy litigation, the city took 65 days to respond to the public-records request and, when it finally did, denied access to supplemental police reports.

In that case, Civil District Judge Lloyd Medley ordered the city to make the records public and also pay $5,000 in penalties, $3,000 in attorneys’ fees and a litigation award of $607. That judgment was upheld in November by the 4th Circuit.